author: JUSTICE HOPF

text:
    HOLCOMB STATE BANK, Plaintiff-Appellee, v. J. GRANT ADAMSON, Defendant-Appellant.
    Second District
    No. 81-255
    Opinion filed July 14, 1982.

      Stephen G. Balsley, of Barrick, Jackson, Switzer, Long & Balsley, of Rockford, for appellant.
    James G. Ahlberg and William G. Nye, both of Fearer and Nye, of Rochelle, for appellee.
   JUSTICE HOPF

delivered the opinion of the court:

Defendant J. Grant Adamson appeals from a judgment in favor of Holcomb State Bank for $13,157.53, the amount of the principal and interest on a note which he co-signed and which was in default. Adamson contends that the extension of the due date of the note without his consent released him from liability. We agree, and reverse.

The evidence adduced at trial reveals that Meinick P. Wick, Adam-son’s son-in-law, sought a loan of $10,000 from the bank for his mushroom business. The bank would not approve the loan unless Wick found a co-maker approved by the bank. The bank president suggested that Adamson co-sign the note, which he did. On the note was handwritten, “For use in Wick’s Mushroom Business” and, at the bottom, “This is Wick’s Note & Adamson is co-signer.” The bank credited $10,000 to the mushroom company account. Adamson did not receive any of the proceeds from the loan.

The promissory note was dated April 27, 1979. It became due October 27,1979. Wick paid the interest due on that date but failed to pay any of the principal. On December 15, 1979, the bank and Wick entered into an agreement to extend the due date to March 4, 1980. The interest rate was increased from 10% to 14% per annum. The note was not paid by March 4, 1980, and was in default after that date. The bank president testified that a notice of the extension was mailed to Adamson; however, there is no record that such a notice was sent to Adamson or that Adamson signed an extension form. An officer of the bank testified that he had discussed extending the note with Adamson, but that Adamson had refused to sign an extension of the note. The witness asserted that Adamson expressed the intention to sign a new note but that one was never made. Adamson testified that he learned of the extension two weeks after it had been approved. After the note had become due he talked to an officer of the bank on a number of occasions about getting the note “straightened out.” The “hassle” the bank gave him after the note became due was for payment of the overdue interest, not payment of the note, he testified. Adamson testified that he never agreed to extend the note.

After hearing all the evidence, the court found that Adamson was an accommodation party but that an accommodation party was not discharged by an extension of time given by the holder to the principal maker without the accommodating maker’s consent. He cited as authority Kratovil v. Thieda (1966), 36 Ill. 2d 247, 222 N.E.2d 485, a decision based upon the Uniform Negotiable Instrument Act.

Adamson moved for reconsideration of the judgment, on the ground that under the Uniform Commercial Code — Commercial Paper (Ill. Rev. Stat. 1979, ch. 26, par. 3 — 101 et seq.) which superseded the Uniform Negotiable Instrument Act, he is not liable for the note. After reconsideration the court reiterated its conclusion that Kratovil applied and affirmed its original ruling.

Adamson appeals, contenting that he signed the note as an accommodation party, and that the extension of the note without his consent and without the express reservation of rights by the bank released him from his obligation under the note.

Section 3 — 606 of the Uniform Commercial Code states conditions under which a party to an instrument is discharged. The section provides in pertinent part:

“(1) The holder discharges any party to the instrument to the extent that without such party’s consent the holder

(a) without express reservation of rights releases or agrees not to sue any person against whom the party has to the knowledge of the holder a right of recourse or agrees to suspend the right to enforce against such person the instrument or collateral or otherwise discharges such person, except that failure or delay in effecting any required presentment, protest or notice of dishonor with respect to any such person does not discharge any party as to whom presentment, protest or notice of dishonor is effective or unnecessary * * *.” Ill. Rev. Stat. 1979, ch. 26, par. 3 — 606(1) (a).

The term “any party” as used in this section refers not to co-makers but to persons who “sign ostensibly as makers but who are in fact surety or accommodation makers * * *." (Godfrey State Bank v. Mundy (1980), 90 Ill. App. 3d 142, 144, 412 N.E.2d 1131, 1134.) An accommodation party thus is released from his liability on a note when it is extended without his consent or without express reservation of rights by the holder.

Adamson can claim the defense provided by section 3 — 606 only if he is an accommodation party.

The trial court found Adamson to be an accommodation party, and we agree. An accommodation party is “one who signs the instrument in any capacity for the purpose of lending his name to another party to it.” (Ill. Rev. Stat. 1979, ch. 26, par. 3 — 415(1); Marcus v. Wilson (1973), 16 Ill. App. 3d 724, 306 N.E.2d 554.) The parties’ intention is the significant element in determining whether a party is an accommodation maker. (Godfrey State Bank v. Mundy (1980), 90 Ill. App. 3d 142, 412 N.E.2d 1131.) When a party receives no direct benefit from the execution of the note it is likely he will be regarded as an accommodation party. (Godfrey State Bank v. Mundy.) The parties’ intention regarding Adamson’s status was shown both by the writing on the note and by oral proof, which is permitted by section 3 — 415(3) (Ill. Rev. Stat. 1979, ch. 26, par. 3 — 415(3)), against one who is not a holder in due course with notice of the accommodation. The evidence that the bank knew Wick alone sought the loan and that the amount of the loan was credited to Wick’s account indicates, contrary to the bank’s assertion, that “all the facts and circumstances known to [the bank] at the time” of the making of the note gave the bank reason to know of Adamson’s status as accommodation party (Ill. Rev. Stat. 1979, ch. 26, par. 1 — 201(25)(c)). The bank thus could not be a holder in due course without notice of accommodation, and the use of parol evidence was proper.

That evidence shows that only Wick sought the loan. The bank would not approve the loan unless a co-maker approved by the bank also signed. Adamson signed the note at the bank’s suggestion. Adamson was not in business with Wick. The entire amount of the loan was credited to the mushroom company’s bank account; Adamson received none of the loan. This evidence, together with the memoranda written on the note, “For use in Wick’s Mushroom Business,” and “This is Wick’s Note & Adamson is co-signer,” supports the finding that Adamson was an accommodation party. The fact that Adamson signed the note where makers normally sign does not deny him this status. Godfrey State Bank v. Mundy (1980), 90 Ill. App. 3d 142, 412 N.E.2d 1131.

The bank argues, however, that whether or not defendant is an accommodation party he cannot claim the protection of section 3 — 606 because he consented to the extension. Printed on the back of the note is the following sentence:

“For Value Received, I hereby guarantee payment at maturity of the within note to the holder thereof, and authorize any extension or extensions the holder may grant the maker, and waive presentment, demand, notice of nonpayment, protest and diligence in collecting the same.”

The bank asserts that Adamson is bound by these words, citing section 3 — 118(f) of the Commercial Code which states in pertinent part:

“A consent to extension, expressed in the instrument, is binding upon secondary parties and accommodation makers.” Ill. Rev. Stat. 1979, ch. 26, par. 3 — 118(f).

We do not think, however, that the words on the back of this note bind every signer of the instrument. The consent to an extension following the words guaranteeing payment is stated in conjunction with those words of guaranty. Only one who guarantees payment of this instrument consents to the rest of the matters contained in the sentence, including consent to the extension of the note. The question to consider next, then, is whether Adamson is a guarantor. Section 3 — 416 of the Commercial Code concerns the contract of a guarantor and provides, in pertinent part:

“ ‘Payment guaranteed’ or equivalent words added to a signature mean that the signer engages that if the instrument is not paid when due he will pay it according to its tenor without resort by the holder to any other party.” Ill. Rev. Stat. 1979, ch. 26, par. 3 — 416(1).

The section provides that a contract guaranteeing payment is made by words of guaranty “added to a signature,” and we think that these words of guaranty printed in isolation on the reverse side of the note from the parties’ signatures are not words added to Adamson’s signature so as to bind him to a guaranty of payment of the note. We conclude, therefore, that Adamson was not a guarantor of the note and that the consent to extension and other conditions stated in conjunction with the words of guaranty had no application with regard to him.

The bank also argues that Adamson consented to the extension of the note by his actions. A bank officer testified that he tried unsuccessfully to get Adamson to sign an extension agreement and that Adamson suggested instead renegotiation of the note. Adamson testified he did not learn of the extension until two weeks after it was made. He refused to sign the extension and instead proposed a renegotiation of the note. We do not think Adamson’s knowledge about the extension after it was given and his willingness to discuss a new arrangement while flatly refusing to sign an extension constitute a consent to the extension agreement between Wick and the bank.

Finally, an accommodation party, even if he has not consented to an extension, may yet be held bound to an extension if the holder expressly reserved its rights against him. (Ill. Rev. Stat. 1979, ch. 26, par. 3 — 606(2)(a).) There is no evidence, however, that the bank expressly reserved rights against Adamson.

We conclude therefore that Adamson, an accommodation party who did not consent to the extension of the note and against whom no express reservation of right is alleged, is not bound by the note extended by Wick and the bank. We reverse the judgment of the Ogle County circuit court.

Reversed.

UNVERZAGT and VAN DEUSEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE VAN DEUSEN

license: Public Domain

text:
      In re CUSTODY OF DAWN MARIE ROBERTS, a Minor.—(WAYNE ROBERTS et al. Petitioners-Appellants, v. JANET FOX, a/k/a Janet Roberts, Respondent-Appellee.)
    Second District
    No. 81-854
    Opinion filed July 16, 1982.

      Ronald A. Gullstrand, Ltd., of Aurora, for appellants.
    Bruce F. Bowman, of Aurora, for appellee.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

Wayne and Mary Roberts appeal from the January 21,1981, order of the trial court which modified a previous custody order of February 16, 1978, and transferred custody of Dawn Marie Roberts from them to Janet Fox. Also, they appeal from the October 2, 1981, order denying their petition for post-judgment relief. Wayne and Mary Roberts are the parents of Janet Fox, and Janet Fox is the natural mother of Dawn Marie.

On appeal, Wayne and Mary Roberts first contend that the trial court’s decision granting Janet’s petition for change of custody was contrary to the manifest weight of the evidence and that the trial court had applied an improper burden of proof in determining the best interest of the child under the guidelines of section 602 of the Blinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 602).

At the outset, we point out that neither the original grant of custody of Dawn Marie to her grandparents nor the award of custody to her mother, Janet Fox, at issue in this matter, involved a proceeding under the Illinois Marriage and Dissolution of Marriage Act. The provisions of that Act are not applicable to this matter. In re Custody of Townsend (1981), 86 Ill. 2d 502, 509; see Ill. Rev. Stat. 1979, ch. 40, par. 102; 86 Ill. 2d 502, 517-18 (concurrence in part and dissent in part).

In a custody determination, a third party seeking to obtain or retain custody of a child has the burden of overcoming the presumption that a natural parent has a superior right to custody; further, the third party must show that it is in the child’s best interest that the third party be awarded the care, custody and control of the minor. (In re Custody of Townsend (1981), 86 Ill. 2d 502, 510-11, 515; People ex rel. Edwards v. Livingston (1969), 42 Ill. 2d 201.) In this regard, the claim of third parties, who, like Wayne and Mary Roberts, have had actual and legal custody for a substantial amount of time is entitled to significant weight.

“It is obvious that in a custody dispute a court should give weight to the claim of a third person who has had actual or legal custody of the child for a substantial period of time, especially if the evidence shows that the child has become an integral member of a true family unit. [Citations.] But however important this factor may be in a given case, it does not rise to the level of a presumption so as to ‘neutralize’ the superior-right doctrine or transpose the superior right from the natural parent to the third person. It remains simply a factor to consider in ascertaining what will best serve the interests of the child.” (In re Custody of Townsend (1981), 86 Ill. 2d 502, 515.)

It should be added that, although the burden is on the third party to overcome the superior-right presumption in favor of the natural parent, the best interest of the child is the standard, and it is not necessary that the natural parent be found unfit or be found to have legally forfeited her rights to custody, if it is within the best interest of the child that she be placed in the custody of the third person. People ex rel. Edwards v. Livingston (1969), 42 Ill. 2d 201, 209.

With these guidelines in mind we have reviewed the record in this matter. Janet Fox gave birth to Dawn Marie on May 30,1977. At that time she was 17 years old, unmarried, not employed, and had a ninth-grade education. She and her child lived with her parents, Wayne and Mary Roberts, for approximately 7 months after the birth of Dawn Marie, except for a 1-month visit to Texas during which time Janet left her child with Wayne and Mary Roberts. In January 1978, Janet, who was 18 years old and still not married or employed, received a telephone call from her mother, Mary Roberts, who requested that she consider giving her parents custody of the child for insurance and tax purposes. At that time, Janet had no insurance for her child, while her parents, who were working, had an insurance policy that would cover the medical needs of Dawn Marie. Janet agreed to give her mother temporary custody of Dawn Marie.

At the January 1981 hearing, Janet testified that, during the original custody hearing, the judge had asked her if she realized that she was relinquishing custody of the child. Although she had responded in the affirmative, she thought that the change of custody would be temporary. Janet also remarked that she did not discuss the original transfer of custody matter with an attorney because her mother told her there was no need for a lawyer to be present. In Mary’s testimony in January 1981, she denied that she had told Janet the change in custody would be temporary but admitted that she had informed Janet that she could reclaim her daughter when she married and settled down. Janet testified that prior to filing the present lawsuit, she requested that her mother return the child to her, but her mother refused to relinquish custody, stating that Janet would have to go to court to regain custody.

Janet’s testimony revealed that she had lived in seven different locations since relinquishing custody of her daughter 3 years earlier. However, she testified she had visited with her child almost every week since Wayne and Mary Roberts were granted custody in February 1978, though Mary testified that sometimes Janet waited 2 weeks before calling to inquire about the child. At the time of this appeal, both Janet and Mary testified, Janet visited Dawn Marie 2 or 3 days a week. On those occasions she picked up Dawn Marie at Wayne and Mary Roberts’ residence and brought her to her marital home for overnight visits.

Janet did testify that, at times, when she would take Dawn for 2- or 3-day visits, the child would become upset and ask to go home to her grandparents, and Mary’s testimony on this matter conformed to Janet’s. According to Mary, occasionally when the child would visit Janet, Janet would call Mary and inform her that the child was upset and wanted her. On several occasions when Mary arrived at Janet’s home to pick up Dawn, the child was crying. To the best of her knowledge, Mary testified, the child never requested that Mary take her to Janet’s home.

During the time her parents had custody of Dawn Marie, Janet further testified, she had not given them any financial assistance to defray the cost of caring for the child because her parents did not ask her for any money. However, Janet said she did buy clothes for her daughter on a regular basis when she was employed, but she had not been able to do so regularly for the past 14 months, because she was unable to work due to pregnancy and the raising of her infant son.

Janet also related that upon a recent Sunday visit to her parents’ home she noticed that the home was “really messy” with garbage strewn on the floors, dishes on the cupboards, and clothes lying all over the house. Mary’s testimony, on the other hand, described garbage collected in the kitchen and dirty laundry strewn on the stairs to the basement at Janet’s house. When she visited her parents, Janet also observed that her daughter was dirty and constantly had colds. She admitted, however, that the child played outside at her parents’ farm and that she was likely to get dirty doing so.

Also at the hearing in January 1981, Janet testified that she was married to Rick Fox and had been his wife for a year and a half, and they had a 5-month-old child as a result of the marital relationship. At the hearing, Rick testified that he had had a steady job for the past 39 months and was earning $19,500 per annum. His medical and dental insurance policy would provide full coverage for Dawn Marie if his wife were granted custody of the child. Rick was willing to accept Dawn into the household and assume the financial responsibility of supporting her. He further testified that he had known the child since she was 3 months old, that she referred to him as “daddy” and that he felt as if she were his own. Janet testified that she and her husband loved Dawn Marie very much and wished to have custody of her so that they could raise her in the same household with their other child.

Wayne and Mary Roberts were 60 and 57 years old, respectively, at the time of the custody hearing. Neither Mary nor her husband was employed at that time and had not been employed since July 1980. However, they were receiving unemployment compensation, and their combined unemployment compensation amounted to $530 every two weeks. Mary anticipated that their unemployment compensation would terminate in August 1981. Due to their unemployed status, the petitioners did not have medical insurance for the child. In addition, Mary related that she and her husband raised horses and cattle and then sold them. In 1980, they received $3,900 from the sale of their animals. They had $3,000 in a checking account and held 60 shares of stock of unknown value. Also, they owned and lived on a 10-acre farm, although the bank held a $19,000 mortgage on that property. The mortgage payments were $3,000 per annum; taxes on the property were $400 per year, while the yearly insurance premium was almost $300. Mary also stated that she intended to take sewing classes and get a job she could do at home.

In her testimony, Mary Roberts further remarked that she bathed Dawn six or seven times a week 'and even more frequently during the summertime. In addition, she and her husband had bought the child numerous toys, animals, and clothes. Mary also testified that Dawn referred to her as “mommy.”

There was testimony at the hearing that Janet and Rick Fox used marijuana. Rick denied that he used marijuana or allowed it to be used in his home. The trial judge found that no evidence had been adduced of any use of marijuana that impaired the mother’s care of the child.

At the completion of the custody hearing on January 21,1981, the trial court observed that Dawn Marie was fortunate in having both loving grandparents and a loving mother and that the grandparents were to be commended for assuming custody of Dawn Marie when they did. He found nothing in the record to show “that anything [had] changed to the detriment of their good care of this child.” However, as the trial judge observed, “no custody order is final.” Hohenadel v. Steele (1908), 237 Ill. 229, 235.

Parties cannot by their agreement surrender the rights of a child, and, upon a material change in the condition of the parties affecting the welfare of the child, the court will change a custody decree where necessary, on proper application. (Hohenadel v. Steele (1908), 237 Ill. 229, 235.) Therefore, Janet’s agreement to surrender custody of Dawn Marie to her parents in February 1978 did not foreclose her later petition for modification of the custody order. As the trial judge observed, the mother had “quieted down” and “readjusted herself” since the February 1978 hearing, she had married a man who would support her without her working and had a small child with whom Dawn Marie should be raised. Given the totality of the circumstances, the court found, the best interests of the child required that she be placed in the custody of her natural mother, and the order of January 21, 1981, so provided.

In custody cases, great discretion must be vested in the trial court because it has the superior opportunity to evaluate the evidence and determine the best interests of the child. The trial court’s determination of custody rights will be reversed only if it has clearly abused its discretion or if the decision was contrary to the manifest weight of the evidence. (Cebrzynski v. Cebrzynski (1978), 63 Ill. App. 3d 66, 74.) Our review of the evidence, in light of the guidelines established by In re Custody of Townsend (1981), 86 Ill. 2d 502, and People ex rel. Edwards v. Livingston (1969), 42 Ill. 2d 201, leads us to conclude that the finding of the trial court as to the best interests of Dawn Marie and its judgment awarding custody to Janet Fox, the natural mother, were not against the manifest weight of the evidence. The record in this cause establishes that the trial judge carefully exercised his discretion with full awareness of the importance of his decision to the child and to those who sought custody of her. Cebrzynski v. Cebrzynski (1978), 63 Ill. App. 3d 66, 74.

We find no abuse of discretion nor, as we have said, does the record show that the court’s decision was contrary to the manifest weight of the evidence. Accordingly, that decision will not be disturbed. Cebrzynski v. Cebrzynski (1978), 63 Ill. App. 3d 66, 74.

Wayne and Mary Roberts’ next contention, that the trial court erred in failing to appoint on its own motion a guardian ad litem to represent the interests of the minor child, is without merit. They neither requested nor suggested prior to or at the time of trial that a guardian be appointed. Such appointment on the court’s own motion is subject to the sound discretion of the trial court, and the failure of the court to sua sponte appoint a guardian ad litem is not an abuse of discretion. (De Franco v. De Franco (1978), 67 Ill. App. 3d 760, 771-72; Rathke v. Peebles (1975), 31 Ill. App. 3d 711, 715.) Based on our examination of the record in the instant case, we find that the child’s interests were vigorously asserted and that appointment of separate counsel was not required. Pierson v. Bloodworth (1980), 81 Ill. App. 3d 645, 652-53.

The last assignment of error is that the trial court erred in dismissing a petition for change of custody which Wayne and Mary Roberts had filed on September 24, 1981, and in which they requested that their granddaughter be returned to them. Their notice of appeal makes no reference to the trial court’s order of October 30, 1981, which dismissed their petition for change of custody. The notice of appeal refers only to the order of January 21, 1981, which awarded custody of the child to Janet Fox and the order of October 2, 1981, which denied Wayne and Mary Roberts’ motion to vacate the order of January 21. Because the appellants failed to designate in their notice of appeal that they were appealing from the court’s order of October 30,1981, the same is not before us and cannot be considered on appeal. (73 Ill. 2d R. 303(c)(2); Moseley v. Goldstone (1980), 89 Ill. App. 3d 360, 365; Mooring v. Village of Glen Ellyn (1978), 57 Ill. App. 3d 329, 331.) Even if the issue were properly before this court, our review of the record indicates that the trial court properly dismissed the petition.

For the reasons set forth above the judgment of the trial court is affirmed.

Affirmed.

SEIDENFELD, P. J., and UNVERZAGT, J., concur.


author: PRESIDING JUSTICE BARRY

text:
    KATHY O. et al., Plaintiffs-Appellants, v. COUNSELING AND FAMILY SERVICES et al., Defendants-Appellees.
    Third District
    No. 82-13
    Opinion filed July 23, 1982.

      Charles L. McNeil, of McNeil, McNeil & McNeil, of Mason City, for appellants.
    Charles W. Kohr, of Mathis, Sloan, Littler & Kohr, of Peoria, for appellees.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

Fifteen-year-old Kathy O. became pregnant during her sophomore year of high school. At the suggestion of her family doctor, she became a resident of the Florence Crittendon Home in Peoria for the last four months of her pregnancy, and three days after the birth of her child, she and the child’s father, Mark B., signed consents surrendering the child for adoption. About two weeks after returning home, Kathy O. contacted the agency to see if she could get her child back, and after being informed that she could not, she and Mark B. filed a habeas corpus petition in the circuit court of Peoria County. That petition was denied, and this appeal followed.

At the time Kathy O. became pregnant, both she and Mark B. were 15 years old and living with their respective parents. The mother of Kathy O. was shocked when she learned of the pregnancy and recommended that the baby be given up for adoption. Before Kathy O, went to Florence Crittendon Home, her mother and step-father told her that they would help her if she wanted to keep the baby but that they believed adoption would be the best thing for the baby. When Kathy O. arrived at the Home in Peoria, she informed a social worker and Lynn Ebker, her counselor from Counseling and Family Services, that she intended to give the child up for adoption. She continued to state that such was her intention throughout all her counseling sessions. Kathy O. knew that many girls did keep their babies, and in fact one section of the Home was occupied by girls with new babies who were learning parenting skills. Alternatives to adoption were mentioned to Kathy O., but she expressed no interest in them. Lynn Ebker explained to Kathy O. that she would not be able to change her mind once she signed the consent and that the form was final and irrevocable. Kathy O. testified that when she signed she understood that she would have no rights thereafter and that she could not change her mind. Kathy O. also stated that she felt no pressure from Lynn Ebker, but did feel pressure from her mother and step-father.

Kathy O. did not tell the father of the child that she was pregnant, although her parents did inform him. She did not want to talk to him and made no effort to contact him until she had been in Peoria for several weeks. Then she talked to him during a weekend visit to her home, and thereafter they talked via telephone several times. He told her and her parents that he would stand by her and do whatever she thought best. He did not tell his parents until just before he went to Peoria to sign the papers, but he did discuss the situation with his aunt, who told him he did not have to sign any papers if he did not want to. At no time did Mark B. tell Kathy O. that he did not want to give their child up for adoption, but he testified that he did not think it was right. However, he felt that her parents gave them no option, and he made no effort to seek advice or help from any other source. He went to Peoria with the step-father of Kathy O., and met Lynn Ebker for the first time at the time the surrenders were signed. The documents were read out loud and explained to him and to Kathy O. Neither one had any questions, and both signed. At trial, both testified that they understood what they were signing, and both said that they knew they did not have to sign. Mark B. stated that he knew he could either keep the child or release it for adoption, that after he signed he could not change his mind, and that he knew he was giving up his rights to the child. He said his mother and step-father told him they would stand behind him and help him financially if he needed help, but he also said he felt pressured by the step-father of Kathy O. and that he thought he had no choice. According to Lynn Ebker, Mark B. signed first.

When Kathy O. returned home, her next-door-neighbor told her that the parents of Kathy O. had told the neighbor that they would have helped her if she had decided to keep the baby and that she could have lived with her grandmother. The neighbor had given up a child for adoption when she was 16 years old, and she said she would babysit while Kathy O. went to school. After being home two weeks, Kathy O. contacted Lynn Ebker, and upon being told that there was no way she could get the baby back, this suit was instituted. At the time of trial, both parents were 16 years old, unmarried, juniors in high school, and Mark B. was employed with two part-time jobs.

Upon appeal, the parents argue that the form of surrenders did not substantially comply with the Adoption Act, that Lynn Ebker obtained their signatures by fraud and duress, that their surrenders were not given freely and voluntarily, and that the statute violates the constitutional rights of minors. We affirm the judgment of the trial court.

The first issue presented is whether the forms for consent to adoption used by the defendant Counseling and Family Services were in compliance with the statute prescribing the form of consent. Section 10 of the Adoption Act (Ill. Rev. Stat. 1981, ch. 40, par. 1512) prescribes the forms for consents and surrenders for adoption.

Section 10(C) begins:

“The form of surrender to any agency given by a parent of a born child who is to be subsequently placed for adoption shall be substantially as follows and shall contain such other facts and statements as the particular agency shall require.”

The title is to be: “FINAL AND IRREVOCABLE SURRENDER FOR PURPOSES OF ADOPTION.”

The following paragraphs from the statute were not included in the document executed by Kathy O. and Mark B.:

“That I do hereby surrender and entrust the entire custody and control of such child to the... (the ‘Agency’), a (public) (licensed) child welfare agency with its principal office in the City of ..........., County of...........and State of..........for the purpose of enabling it to care for and supervise the care of such child, to place such child for adoption and to consent to the legal adoption of such child.

That I hereby grant to said Agency full power and authority to place such child with any person or persons it may in its sole discretion select to become the adopting parent or parents and to consent to the legal adoption of such child by such person or persons; and to take any and all measures which, in the judgment of said Agency, may be for the best interests of such child, including authorizing medical, surgical and dental care and treatment, including inoculation and anaesthesia for such child.

That I wish to and understand that by signing this surrender I do irrevocably and permanently give up all custody and other parental rights I have to such child.

That I understand I cannot under any circumstances, after signing this surrender, change my mind and revoke or cancel this surrender or obtain or recover custody or any other rights over such child.

That I have read and understand the above and I am signing it as my free and voluntary act.” Ill. Rev. Stat. 1981, ch. 40, par. 1512(C).

Instead of the statutory language, the document signed by Kathy O. and Mark B. was titled: “SURRENDER OF CHILD AND CONSENT TO THE ADOPTION THEREOF AND ENTRY OF APPEARANCE.” In addition to name and address and age of the parents, the form contained the following declarations:

“That I do hereby consent and agree to the adoption of said child.
* * *
That I do hereby surrender the custody, control and all other parental rights that I may have in said child to HENRY SUOZZI as Executive Director of Counseling and Family Service of Peoria, Illinois, Inc., or his successor in office; and irrevocably agree that he may cause proceedings for adoption of said child to be commenced in any Court having jurisdiction and that he be, and is hereby, expressly authorized to consent to such adoption without any notice whatsoever to me.
That I do also enter my appearance in any proceeding pertaining to said child brought pursuant to the Adoption Act of the State of Illinois and/or Juvenile Court Act of the State of Illinois, and do hereby waive service of summons and submit to the jurisdiction of the Court before which said proceeding is filed or pending and consent to all orders and decrees entered by such Court in any of said proceedings.”

In addition to the form of the consent, section 10 also requires that a consent be acknowledged by a parent before the presiding judge of the court in which the petition for adoption has been or will be filed or before, inter alia, a representative of a licensed child welfare agency (section 10(H)). Subsection (I) states:

“A surrender, or any other document equivalent to a surrender, by which a child is surrendered to any agency shall be acknowledged by the person signing such surrender, or other document, before a judge or the clerk of any court of record, either in this State or any other State of the United States, or before a representative of an agency or before any other person designated or approved by the presiding judge of the court in which the petition for adoption has been, or is to be, filed.” Ill. Rev. Stat. 1981, 40, par. 1512(1).

Finally the form of acknowledgment is set out in full in section 10J. In the case at bar, the acknowledgment was in the precise form prescribed by statute, i.e., the representative of a licensed agency certified that the parents acknowledged to her that they signed the consent and surrender as his and her free and voluntary act and that she “fully explained that by signing such instrument he [and she] were irrevocably relinquishing all parental rights.” The certificate of the agency representative was acknowledged before a notary public. These formalities were held to be mandatory in In re Adoption of Lucas (1980), 87 Ill. App. 3d 1100, 409 N.E.2d 521.

In determining whether the requirements of the statute were met, it has been held that only substantial compliance with the statute is required. (McConnell v. McConnell (1931), 345 Ill. 70,177 N.E. 692.) Thus exact conformity with the statutory language is not mandatory for the form of the consent if the irrevocable nature of the consent to adoption was made sufficiently clear and if the parents understood the consequences of their acts. Hale v. Hale (1978), 57 Ill. App. 3d 730, 373 N.E.2d 431.

The consent signed by Kathy O. and Mark B. quite clearly indicated that the consents were irrevocable and that all parental rights were being given up permanently. Furthermore, both Kathy O. and Mark B. testified that the document was explained to them, that they understood what the consent meant, and that they knew they could not later change their minds. The evidence is clear and convincing that these parents knew the legal effect and consequences of the consent documents and that they were fully advised that they were permanently surrendering their parental rights to their child. Thus the purpose of the statute was met, even though the form was somewhat deficient. We believe the trial judge, Richard Eagleton, correctly advised the agency that use of the statutory form would have avoided this litigation.

We think effect should be given to subsection 10(1), which refers to the acknowledgment of a “surrender, or any other document equivalent to a surrender * * *(Ill. Rev. Stat. 1981, ch. 40, par 1512(1).) The legislature obviously intended that some document other than this statutory form could accomplish the purpose of surrendering a child to an agency for adoption. Considering the totality of the circumstances in this case, we conclude the consents were in substantial compliance with the statute.

Next the parents argue that the trial court erred when it failed to find that the agency representative Lynn Ebker obtained their signatures through fraud and duress. They say that they were overwhelmed by their youth, their ignorance, and their circumstances, that they did not really want to give up their child but that they were inadequately advised and counselled as to possible alternatives. They insist that Lynn Ebker had a duty .to press upon Kathy O. information as to public aid and other assistance available to her even when Kathy O. said she did not want to keep her baby and did not want such information. They further argue that Lynn Ebker should somehow have sought out the father and informed him of all his rights, although he was not her client and did not ask advice from her or any other source, even his own parents. These arguments presented on behalf of the parents are patently at odds with the law of Illinois, and most particularly the public policy which attempts to achieve the stability of adoption and the welfare of the adopted children.

In People ex rel. Drury v. Catholic Home Bureau (1966), 34 Ill. 2d 84, 213 N.E.2d 507, the Supreme Court of Illinois defined duress as an unlawful act of one which induces another to make a contract under circumstances which deprive him of the exercise of his free will, and also stated:

“Mere annoyance or vexation will not constitute duress, but there must be such compulsion affecting the mind as shows that the execution of the contract or other instrument is not the voluntary act of the maker. [Citations.]
Mere advice, argument or persuasion does not constitute duress or undue influence if the individual acts freely when he executed the questioned documents though the same would not have been executed except for the advice, argument or persuasion.” 34 Ill. 2d 84, 92-93, 213 N.E.2d 507, 511.

These statements were quoted with approval in Regenold v. Baby Fold, Inc. (1977), 68 Ill. 2d 419, 433, 369 N.E.2d 858, 864, where the court also accepted the definition of fraud set forth in People ex rel. Chicago Bar Association v. Gilmore (1931), 345 Ill. 28, 46, 177 N.E. 710, 717:

“Fraud includes anything calculated to deceive, where it be a single act or combination of circumstances, whether the suppression of truth or the suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or by silence, by word of mouth or by look or gesture.”

The court went on to observe that the concept of fraud involves “ ‘a wrongful intent — an act calculated to deceive.’ ” Regenold v. Baby Fold, Inc. (1977), 68 Ill. 2d 419, 435, 369 N.E.2d 858, 865.

Regenold involved a natural mother who had given up her baby at least in part because she thought it needed medical treatment that she could not afford. She sought to have her surrender set aside on the ground that it was not her free and voluntary act but rather was executed as a result of fraud and duress. The court considered the very argument that the parents make here, that the totality of the circumstances of her personal life placed her under so much stress that she did not sign the surrender document freely and voluntarily, and that the adoption agency participated in the fraud and duress by failing to inform her of the various alternatives available to her, thereby depriving her of an opportunity to make a rational decision. The supreme court concluded that such conduct by the agency did not constitute fraud or duress. The court approved the legislative purpose of attempting to achieve stability of adoption and the welfare of adopted children, and, while recognizing the stress experienced by a mother in hopeless circumstances, concluded that the surrender should not be set aside in the absence of clear and convincing evidence of fraud and duress as defined by the courts.

Another factor to be considered is that, in order to set aside a consent, the fraud and duress must have been accomplished by the person before whom the consent or surrender is acknowledged. (Ill. Rev. Stat. 1981, ch. 40, par. 1513.) Both Kathy O. and Mark B. testified that they felt pressure to sign from the parents of Kathy O. but not from Lynn Ebker. The fact that duress or fraud was practiced by some third party does not affect the validity of the consent in any event.

Neither the courts nor the legislature require that unmarried minor parents receive any counseling prior to executing a valid consent to adoption. The law requires only that the consent be executed knowingly and as a free and voluntary act before a person authorized to obtain a consent. Clearly Kathy O. received the necessary admonitions and explanations to meet the requirements of the law, and Kathy O. received much more in the form of counseling and advice. Social theories advocating that the State ought to provide more help should be addressed to the legislature, not to the courts.

The parents’ arguments overlook the fact that Kathy O. stated to the agency from the beginning that she wanted to give her baby up for adoption. She persisted in that intention throughout her pregnancy, and she carried through by executing a consent to adoption. We find no fraud or duress in the circumstances presented by the record in this case. Though both Kathy O. and Mark B. may have felt overwhelmed, those feelings are to be expected by such an event when 15-year-olds are confronted with the adult responsibilities of caring and providing for an infant. The standard on review is whether the trial court’s finding that there was no fraud or duress was contrary to the manifest weight of the evidence. As our discussion of the evidence indicates, we find that there was substantial evidence to support the decision of the trial court.

The parents also argue that Lynn Ebker failed to provide them with sufficient understanding of their acts so that their signatures were not actually given freely and voluntarily as required by the statute. As we indicated previously, Kathy O. received extensive counseling, was familiar with the Florence Crittendon program for single girls who chose to keep their babies, and was told by her parents that they would help her whatever she chose to do. Mark B. did not receive counseling, but he too was told by his mother, just before he went to Peoria to sign the consent, that she would help him whatever he decided to do. Both parents testified that they knew they did not have to sign and that they were so advised. There was substantial evidence to support the trial court’s conclusion that their consents were freely and voluntarily given, and that finding was not contrary to the manifest weight of the evidence.

We think it worth noting that at no time has the father suggested that he would be willing or able to take custody of the baby. From the beginning, he told Kathy O. that he would go along with whatever she wanted to do, and he did not seek guidance or advice. We believe it worth observing that if lack of education, immaturity, and inexperience, are sufficient to permit a court to set aside surrender forms as not freely and voluntarily given, then 14- and 15- and 16-year-old parents would never be able to sign valid consents.

The parents also advance two constitutional issues. First, they contend that sections 10 and 11 of the Adoption Act (Ill. Rev. Stat. 1981, ch. 40, pars. 1512, 1513) deprive them of their constitutionally protected rights to procedural due process and substantive due process because the surrenders can be taken and acknowledged by a representative of an agency without a hearing in court as to whether the surrender was a free and voluntary act. In other words, they claim that the State should not allow an agency to determine that the surrender was freely and voluntarily executed by the parents of a child, particularly in view of the fact their parental rights are entitled to the same protection as other fundamental rights. As they develop their argument, the parents state that minors particularly should be guaranteed “neutral counseling and constructive advice as to alternatives to adoption.” This would seem to be part of the same policy argument presented above.

In the Regenold case, the supreme court recognized that the right of a parent to custody of his or her child is encompassed within the protection of the fourteenth amendment so that legislative interference of that right must not be arbitrary or without reasonable relation to some purpose within the competency of the State to effect. (See Meyer v. Nebraska (1923), 262 U.S. 390, 67 L. Ed. 1042, 43 S. Ct. 625.) In determining the constitutionality of the statutory provisions restricting revocability of the consent, the court balanced the parents’ right to custody against the State’s primary concern for stability of adoption and the welfare of children. The court held the statute to be “an expression of sound public policy,” a matter “peculiarly within the competence” of the legislature, and stated, that “the judiciary should not attempt to alter or abrogate that clearly expressed legislative determination.” Regenold v. Baby Fold, Inc. (1977), 68 Ill. 2d 419, 440, 369 N.E.2d 858, 868.

The parents also argue that they should be entitled to special counseling prior to the waiver of their rights solely because they were minors. They suggest that in the case of minors, the record should indicate their full awareness of the consequences of their action based on an informed decision. A similar argument was rejected in In re Adoption of Hoffman (1975), 61 Ill. 2d 569, 338 N.E.2d 862, where the natural parents contended that they were denied due process when they signed consents to adoption without advice of legal counsel. The court held:

“While it may be desirable for the natural parents of a child to have legal counsel prior to consenting to the adoption of the child, we do not find it to be constitutionally required, particularly in view of the safeguards contained in * * * the Adoption Act, which specifies the form of the consent [citation] * * * which requires all consents of this type to be acknowledged by a parent before a judge or other person designated or approved by the court.” (61 Ill. 2d 569, 579-80, 338 N.E.2d 862, 868.)

We believe the same holding applies to the argument advanced here. We conclude that the statute does not violate the due process rights of minor parents, but is reasonably related to the public policy purposes sought to be protected by the legislature.

Finally, the parents argue that as minors, they are denied equal protection of the law because of the provision in section 11 which states: “The consent or surrender of a parent who is a minor shall not be voidable because of such minority.” (Ill. Rev. Stat. 1981, ch. 90, par. 1513.) They argue that other contracts entered into by minors are voidable because of minority, and thus minor parents who surrender a child are denied the protection afforded minors who sign a contract to buy a car, for example.

To that argument we say once again, the legislature has balanced the need for finality and stability of adoption against the need to protect minors solely on the basis of their age. A surrender of adoption, unlike a contract to purchase a car, involves a third person — the child of the minor parents — who must also be protected by the public policy of the State. Because the legislature has determined that interest of the child requires the irrevocability of surrenders by parents, whether minors or adults, the statute denied minor parents the right to renounce a consent or surrender solely on the basis of age. A similar limitation is recognized at common law upon contracts by minors for necessaries furnished them. (In re Estate of Johnstone (1965), 64 Ill. App. 2d 447, 212 N.E.2d 143.) We conclude that the equal protection argument is without merit.

We affirm the judgment of the circuit court of Peoria County.

Affirmed.

ALLOY and HEIPLE, JJ., concur.


author: PRESIDING JUSTICE EARNS

text:
    LYNN WILFONG, Petitioner-Appellant, v. COLLINSVILLE COMMUNITY UNIT SCHOOL DISTRICT NO. 10 et al., Respondents-Appellees.
    Fifth District
    No. 81-254
    Opinion filed July 14, 1982.
    Weihl & Millard, Ltd., of Belleville (Donald E. Weihl, of counsel), for appellant.

      Dunham, Boman and Leskera, of East St. Louis (John W. Leskera and Russell K. Scott, of counsel), for appellees Collinsville Community Unit School District No. 10 and Collinsville Board of Education.
   PRESIDING JUSTICE EARNS

delivered the opinion of the court:

Petitioner, Lynn Wilfong, brought an action in the circuit court of Madison County against respondents, the Collinsville Community Unit School District No. 10, the Collinsville Board of Education, and the Collinsville Education Association, seeking to enjoin respondents from reassigning her and assigning another teacher to the position formerly held by petitioner at a district elementary school. After a bench trial, the court denied petitioner’s request for injunctive relief and found in favor of respondents.

At issue is the collective bargaining agreement negotiated by the board and the Collinsville Education Association (hereinafter referred to as C.E.A.), the bargaining agent for certificated personnel employed by the Board, for the 1978-79, 1979-80 school years. The parties reached an agreement during the fall of 1978; however, the agreement was not signed until March 9, 1979, because the language was recodified. The collective bargaining agreement was distributed to all certificated personnel on April 5,1979.

Specifically in dispute are the following provisions as originally contained in article XI of the collective bargaining agreement:

“Section 4. If an employee’s position is eliminated, that person shall be permitted to bump into any position for which he/she is qualified provided that such teacher:

a. is certificated for the position he/she is bumping into, and

b. has more district seniority than the teacher he/she is bumping.

# # #

Section 5. The teacher with the most seniority may choose from those teachers who will be laid off because of the bumping process, assuming that teachers who bump are qualified. Teachers may not, however, bump someone who is not scheduled to be reduced.”

On April 9, 1979, the board and the C.E.A. sent a memorandum to all certificated personnel which stated that section 5 of article XI was placed into the contract inadvertently and was not intended to be a part of the agreement.

The evidence at trial shows that the board and the C.E.A. agreed that the purpose of the bumping procedure was to facilitate teacher transfers following the board’s decision to eliminate positions by giving preferential rights to teachers with district seniority. According to the parties’ understanding, the board would be in breach of the agreement if it reassigned teachers whose positions were eliminated without allowing them to choose their assignments through the bumping procedure.

Petitioner is employed by respondent board in continued contractual service, as tenure is referred to in the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 24 — 11), and is a member of the C.E.A. From 1976 through 1979, she taught kindergarten at Lincoln Elementary School. On March 29, 1979, the school principal informed petitioner that she was being bumped from her position by Ann Rauh. Petitioner was further informed that she had the right to choose her reassignment through the bumping procedure.

Following this notification, petitioner and her husband talked several times with Assistant Superintendent Dallas T. Harrell to protest her reassignment. Upon receiving a copy of the contract on April 5, petitioner’s husband complained to Harrell that the reassignment was in violation of section 5 of article XI. Harrell replied that the specific provision did not apply to petitioner’s situation. Petitioner then filed a grievance through the C.E.A. which it refused to process. Thereafter, petitioner chose as her reassignment a kindergarten position at Maryville East School and Summit School, the position she held at the time of trial. It is undisputed that petitioner suffered no reduction in salary or loss of other benefits as a result of the transfer, although she must travel an additional 10 miles to work.

Ann Rauh was teaching art at North Junior High School and at the adjoining Lincoln Elementary School. She holds both an elementary certificate and an art certificate. In March 1979, after being informed that her teaching positions were being eliminated, Rauh chose the position held by petitioner at Lincoln Elementary School. It is undisputed that Rauh was both qualified to teach the kindergarten class and had more district seniority than petitioner. Rauh was the least senior teacher at North Junior High School, but she was not the least senior teacher at Lincoln Elementary School.

The board had instructed the administration that positions should be reduced because of financial exigencies. The administration reported periodically to the board to discuss which positions could be eliminated most feasibly. The specific decision to eliminate the positions held by Rauh was based on the anticipated decreased enrollment for the upcoming school term. The remaining teachers assumed Rauh’s teaching responsibilities. No evidence was presented that any teacher was dismissed as a result of the administration’s decision to eliminate Rauh’s positions.

After hearing evidence, the trial court found that the agreement governing petitioner’s rights did not include section 5 of article XI; that Rauh’s position was eliminated as that term was used in the agreement; and that the procedure by which petitioner was transferred was not arbitrary or discriminatory.

The basic issue involved in this appeal is whether petitioner proved that she was entitled to enjoin respondents from reassigning her and assigning another teacher to the position formerly held by petitioner at a district elementary school. On appeal, petitioner argues, in substance, that the trial court erred in its interpretation of the contract between the teacher’s union and the school board and that the reassignment was in violation of her rights as established by that contract.

An injunction is an extraordinary remedy which is granted only after the petitioner establishes the existence of a lawful right, irreparable harm and inadequate remedy at law. (Distaola v. Department of Registration & Education (1979), 72 Ill. App. 3d 977, 391 N.E.2d 489.) The decision to grant or deny injunctive relief is one of judicial discretion and should not be reversed absent a showing of an abuse of discretion. Thrash v. Board of Education (1982), 106 Ill. App. 3d 182, 435 N.E.2d 866.

Petitioner argues that article XI, section 2 of the collective bargaining agreement, which provides that the board must reduce the least senior teachers first, means that the school board must reduce staff by eliminating teachers and not by eliminating teaching positions. We cannot accept petitioner’s interpretation of the contractual provision. School boards are vested with broad discretion in creating new teaching assignments and in rearranging teaching assignments in all cases except where the continued employment of a tenured teacher may be jeopardized. (Higgins v. Board of Education (1981), 101 Ill. App. 3d 1003, 428 N.E.2d 1126; Ill. Rev. Stat. 1979, ch. 122, par. 24 — 11.) Article XI, section 2 of the contract merely delineates the order of dismissal of teachers according to district seniority. It does not prohibit the board from eliminating particular positions. Indeed, to construe the contractual provision as petitioner urges would deny the flexibility that school boards need in order to efficiently operate our public schools. (See Lester v. Board of Education (1967), 87 Ill. App. 2d 269, 230 N.E.2d 893.) Clearly the board had the authority to eliminate Rauh’s position.

The question becomes whether the school board properly allowed Rauh to choose as her reassignment the position held by petitioner. In this regard, petitioner argues that because article XI, section 5 of the employment contract prohibited teachers whose positions were eliminated from bumping teachers who were not scheduled to be reduced, Rauh was prohibited under the terms of the contract from bumping petitioner. Petitioner further argues that contrary to the trial court’s finding, respondents failed to prove that this provision was not intended to be a part of the contract. However, section 4 and section 5 would seem to be concerned with entirely different situations, the former to elimination of teaching positions, but not staff, the latter to reduction in teaching force under section 24 — 12 of the School Code. (Ill. Rev. Stat. 1979, ch. 122, par. 24 — 12.) Inasmuch as we are here concerned only with the elimination of a teaching position, the presence or absence of section 5 in the collective bargaining agreement is immaterial and of no aid to petitioner. Reduction in teaching force, we would note, would still be governed by the detailed provisions of section 24 — 12 of the School Code. Furthermore, another section of the same article of the collective bargaining agreement (section 2) governed the manner in which teachers would be discharged if teaching personnel were to be reduced. This provision was in accord with the procedure of section 24 — 12 of the School Code; so, contrary to petitioner’s argument, we do perceive an ambiguity in the meaning of section 5 of the agreement.

We find Peters v. Board of Education (1982), 106 Ill. App. 3d 77, 435 N.E.2d 814, instructive on the issue raised here. In Peters, petitioner, a tenured teacher, filed a petition for writ of mandamus seeking reinstatement as a full-time teacher with respondent school district. Petitioner was honorably discharged following the school board’s decision to eliminate her English classes. Petitioner made a demand on the board for reinstatement to teach English or European history which was denied. The court, in Peters, rejected petitioner’s contention that she had a right to choose certain history classes from teaching positions that she was otherwise unqualified to teach in order to “create” a new position. The court, however, found in favor of petitioner in regard to her request to hold an English teaching position where the reassignment of one class in journalism would have enabled each of the existing teachers to maintain a full teaching schedule without necessitating petitioner’s dismissal. The court reasoned that teachers with district seniority have a right to insist upon the “horizontal realignment of course assignments” to maintain their full-time teaching status where such realignment would not jeopardize the rights of other faculty members.

Similarly, Rauh had a right to insist upon the realignment of course assignments following the board’s decision to eliminate her art position. It was undisputed that she was qualified to teach the kindergarten class formerly taught by petitioner. As in Peters, the transfer of Rauh and the subsequent reassignment of petitioner did not result in the dismissal of any district teachers. Further, it was undisputed -that petitioner did not suffer a reduction in salary or loss of other benefits as a result of the board’s actions. Because petitioner failed to demonstrate how she was prejudiced by the board’s action, we find it unnecessary to consider whether the trial court properly interpreted the employment contract.

Even were we to accept petitioner’s argument that section 5 of the contract applied to her and could not be eliminated from the collective bargaining agreement on the basis that it was inserted into the agreement by mutual mistake or typographical error on the part of the board and the C.E.A., an issue we do not reach, we do not find that petitioner could be afforded any effective relief. As we have noted, she suffered no loss of salary or seniority rights; she has been inconvenienced by being required to drive additional miles to work, but she asks no relief other than being restored to her former teaching assignment. She acknowledges that the school administration could immediately assign her to teach at the same elementary schools where she has taught for the past two school terms. Her real complaint is that the board and school administration did not make this decision by the exercise of independent judgment. In this regard we would note that the bumping procedure established in section 4, which allows teachers to choose their teaching assignments even though the provisions of section 24 — 12 of the School Code regarding dismissal of teachers in contractual continuous service have not been brought into play, is arguably violative of the public policy of Illinois in that it delegates to an individual teacher one of the discretionary powers given the board under the School Code.

It is established that while a school board may enter into a collective bargaining agreement with a teacher’s union, the board cannot, by such an agreement, delegate or limit its statutory powers and duties. (Weary v. Board of Education (1977), 46 Ill. App. 3d 182, 360 N.E.2d 1112.) According to the testimony of a school board representative, the contract provision granting bumping rights to teachers with district seniority meant that the teachers had the right to choose their particular assignments upon the elimination of their positions. If the school board reassigned teachers who had bumping rights without allowing them to exercise these rights, then the board would be in breach of the contract. This provision, therefore, restricts the board’s discretionary power to transfer teachers. (Classroom Teachers Association v. Board of Education (1973), 15 Ill. App. 3d 224, 304 N.E.2d 516; Ill. Rev. Stat. 1979, ch. 122, par. 24 — 11.) Here, it was arguably Mrs. Rauh’s decision and not the decision of the school board that resulted in petitioner’s transfer, a decision that the board believed it was compelled to execute under the terms of the collective bargaining agreement. We believe that there is a distinction between demanding a particular teaching position and insisting on the protection of teacher tenure rights. Because petitioner does not raise this argument on appeal, however, we decline to consider this point in reaching our decision.

For the foregoing reasons, we conclude that the trial court did not abuse its discretion in denying the petition for injunctive relief.

Affirmed.

KASSERMAN and JONES, JJ., concur.


author: JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VIENCE L. HOWARD et al., Defendants-Appellants.
    First District (4th Division)
    Nos. 80-2926, 80-3071 cons.
    Opinion filed July 1, 1982.
    Steven Clark, of State Appellate Defender’s Office, of Chicago, for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, Harry John Devereux, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

In cause No. 80-2926, defendant Howard pleaded guilty to robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 1) and was sentenced to a term of seven years to be served concurrently with a seven-year sentence for burglary imposed after a bench trial. The trial court did not act upon defendant’s pro se response to withdraw his guilty plea, presumably because the same day it was filed defendant filed a pro se notice of appeal. Howard now questions whether the trial court should have conducted a hearing on his timely motion to withdraw the plea.

In cause No. 80-3071, defendant Cunningham was convicted of burglary and sentenced to a term of five years. On appeal he contests the propriety of the sentence.

We first dispose of cause No. 80-3071. In that trial the State’s evidence showed that on May 9, 1980, the complainant’s apartment was burglarized; forced entry had been gained through the back door by breaking the lock. The police who responded to a call of burglary in progress saw four men run across the alley near complainant’s apartment. One officer pursued both defendants and arrested them after they dropped complainant’s property. Cunningham claimed that he was in his apartment, which was near complainant’s apartment, when he saw police chasing an acquaintance. Cunningham then went out onto the porch and yelled at this man to get out of the yard. The police caught the man and then arrested both defendants and another man who were merely on the porch.

In sentencing defendant Cunningham, the trial court noted that defendant’s “rap sheet” dated back to 1968 and commenced with certain juvenile charges. The court also noted that defendant’s adult record contained 33 entries, not all of which resulted in conviction. The trial court did note that this defendant had been convicted of possession of marijuana and various theft-related offenses which resulted in some terms of incarceration. Cunningham now contends that the trial court improperly considered his arrests that did not result in convictions in determining the sentence to be imposed.

Defendant did not object to the court’s comments, thereby waiving the matter on review. (People v. Boyce (1977), 51 Ill. App. 3d 549, 366 N.E.2d 914.) Moreover, we do not believe that consideration of defendant’s arrests entered into determination of the sentence. The context of the court’s statement in this regard showed that the court believed that this defendant’s life revolved around contact with law-enforcement authorities. The sentence does not show a reliance on improper factors. (See People v. Poll (1980), 81 Ill. 2d 286,408 N.E.2d 212.) Further, defendant’s untruthfulness when he testified at trial could be considered. (People v. Meeks (1980), 81 Ill. 2d 524,411 N.E.2d 9.) Finally, under the facts of this case, including defendant’s prior convictions, the sentence imposed was not an abuse of discretion. (People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.) The judgment in cause No. 80-3071 is affirmed.

Defendant Howard in cause No. 80-2926 argues that he is entitled to a hearing on his motion to withdraw his guilty plea despite his contemporaneous pro se notice of appeal. Defendant pleaded guilty to robbery (indictment No. 79-7392) on the day he was to be sentenced for the burglary conviction. Upon his negotiated plea he received a seven year sentence concurrent with the seven year sentence for burglary. The entry of the guilty plea was in substantial compliance with Supreme Court Rule 402. (73 Ill. 2d R. 402.) Defendant was advised of the requirements that he first request the trial court to vacate the guilty plea before he might appeal (73 Ill. 2d R. 605) and that he would have 30 days to file this motion and a like time to file a notice of appeal from the burglary conviction. The pro se notice of appeal bore both indictment numbers, as did the motion to withdraw the guilty plea.

The record makes plain that defendant tried to comply with the trial court’s admonitions, but because of his possible confusion the pro se notice of appeal referred to both convictions. The State may be correct that defendant’s guilty plea was proper and his motion to withdraw it was patently without merit. However, we believe that defendant must be allowed to have the trial court rule on his motion to withdraw the plea in order to insure compliance with the applicable supreme court rule. Cf. People v. Kinzer (1978), 66 Ill. App. 3d 466, 384 N.E.2d 50.

The judgment in cause No. 80-3071 is affirmed. We remand cause No. 80-2926, as it pertains to indictment No. 79-7392, to allow defendant Howard to file a proper motion to withdraw the plea, if he desires, in conformity with Supreme Court Rule 604(d) (73 Ill. 2d R. 604(d)).

Affirmed (80-3071); remanded (80-2926).

JOHNSON, P. J., and ROMITI, J., concur.

       We affirmed Howard’s burglary conviction (indictment No. 80-3704) on May 6, 1982, in a Rule 23 order pursuant to Anders v. California (1967), 386 U.S. 738,18 L. Ed. 2d 493, 87 S. Ct. 1396 (appellate No. 80-2926).

       This was the same offense for which Howard was also convicted at a joint bench trial.


author: JUSTICE JIGANTI

text:
    LAWTER INTERNATIONAL, INC., Plaintiff-Appellee, v. JOHN R. CARROLL et al., Defendants-Appellants.
    First District (4th Division)
    No. 82-758
    Opinion filed July 1, 1982.

      Vedder, Price, Kaufman & Kammholz, of Chicago (John A. Relias, Arthur J. McGivern, and Richard F. Zehnle, of counsel), for appellants.
    Jenner & Block, of Chicago (Albert E. Jenner, Jr., Rodney D. Joslin, John H. Mathias, Jr., Deborah H. Bornstein, Michael A. Weinbaum, and Alan Raphael, of counsel), for appellee.
   JUSTICE JIGANTI

delivered the opinion of the court:

The trial court denied the defendants’ motion to dissolve what is entitled a “Temporary Restraining Order” but which the defendants denominate as a preliminary injunction. The defendants appeal from the denial of their motion.

On March 4, 1982, the plaintiff, Lawter International, Inc. (Lawter), filed a verified complaint for an injunction and a motion for a temporary restraining order and a preliminary injunction. Lawter sought to restrain the defendants, John R. Carroll, James A. Carroll, Richard M. Bradley and Carroll Scientific, Inc., from competing with Lawter and from disclosing trade secrets. On the same day and prior to the hearing on the motion for the temporary restraining order, the defendants filed a verified answer denying the material allegations of the complaint and also interposing affirmative defenses. The fact that the defendants appeared, filed a verified answer and interposed affirmative defenses made this a motion for a temporary- restraining order with notice.

The trial court entered the temporary restraining order against the defendants on March 4,1982, without holding an evidentiary hearing. The order specifically stated that its purpose was “to maintain defendant’s status quo” until the motion on a preliminary injunction could be fully considered. The order further stated that a hearing on the plaintiff’s motion for a preliminary injunction would be held within eight days on March 12, 1982. On March 12, the temporary restraining order was extended to March 22,1982. The defendants do not contest the propriety of the issuance of these orders.

On March 22, 1982, the court entered the following order which forms the basis of this appeal:

“The hearing on plaintiff’s motion for a preliminary injunction is set for the following dates:
March 25, 1982 at 3 p.m.
March 29,1982 at 2:30 p.m.
March 30, 1982 at 3 p.m.
April 1,1982 at 2:30 p.m.
April 2, 1982 at 2:30 p.m.
The temporary restraining order previously entered in this matter shall remain in full force and effect pending further orders of this court.”

Also, on March 22, 1982, the defendants filed a motion to dissolve “the injunction entered on March 4,1982 and extended to March 22,1982.” The motion was denied.

The defendants’ position is that the order of March 22, 1982, despite its label, is in fact a preliminary injunction because it states that the previous order “shall remain in full force and effect pending further orders of this court.” The defendants argue that such language makes the order of unlimited duration and thus transforms it into a preliminary injunction. They contend that in the face of a verified answer denying the material allegations of the complaint, a preliminary injunction should only be granted after holding an evidentiary hearing at which the parties have an opportunity to be heard. Centennial Laundry Co. v. West Side Organization (1966), 34 Ill. 2d 257, 215 N.E.2d 443.

The defendants’ argument that this is a preliminary injunction and not a temporary restraining order rests largely on certain statements by the Illinois Supreme Court in the case of Kable Printing Co. v. Mount Morris Bookbinders Union Local 65-B (1976), 63 Ill. 2d 514, 349 N.E.2d 36. There both parties appeared in court. After a discussion in chambers which lasted several hours, the court entered an order that was entitled “Court Order For Temporary Restraining Order.” The order provided that it was to “remain in full force and effect pending further order of this court.” Three months later when the plaintiff sought to have the defendants held in contempt for an alleged violation of the temporary restraining order, the defendants moved to dismiss the contempt citation on the grounds that the violations occurred more than 10 days after the entry of the court’s order and consequently it expired under the express terms of section 3 — 1 of the statute dealing with injunctions and temporary restraining orders. (Ill. Rev. Stat. 1979, ch. 69, par. 3 — 1.) The relevant portions of the statute are as follows:

“Every temporary restraining order granted without notice 999 shall expire by its terms within such time after entry, not to exceed 10 days, as the court fixes, unless 9 9 9 the order ' * 'is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period * * * In case a temporary restraining order is granted without notice, the motion for a preliminary injunction shall be set down for hearing at the earliest possible time * 0 (Emphasis added.)

The supreme court affirmed the validity of the order in Kable Printing Co. because it was granted with notice and the 10-day limit did not apply. In doing so, it made the statements upon which the defendants rely in their argument that the temporary restraining order in the instant case was transformed into a preliminary injunction.

“* ° “a temporary restraining order issued with notice is, in its practical results, no different than a preliminary injunction issued with notice. 9 9 9 Accordingly, we hold that a temporary restraining order issued with notice and a preliminary injunction issued with notice, neither of limited duration, are the same type of relief ° * (Emphasis added.) 63 Ill. 2d 514, 524, 349 N.E.2d 36, 40.”

When the order in the instant cause is read as a whole, we believe that it is not like the order in Kable and is not of unlimited duration as the defendants contend. Rather, the order here is a temporary restraining order and in fact of limited duration. Although the order states that it “shall remain in full force and effect pending further orders,” which might suggest it is of unlimited duration, the order then sets the first hearing on the preliminary injunction within three days of the issuance of the order and the next four hearings within the following eight days. Thus, the net effect of the language in the instant order is not to make it of unlimited duration as the defendants contend, but only to maintain the status quo until the hearing on the preliminary injunction can be completed.

Since we find that the temporary restraining order at issue here is of limited duration, the next question is whether section 3 — 1 further limits such an order to only 10 days. We do not believe so. If the temporary restraining order in the instant cause were issued without notice then the statute clearly applies and states that every temporary restraining order granted without notice “shall expire by its terms” in a period not to exceed 10 days. However, the order in the instant case was issued with notice. Since the statute does not consider temporary restraining orders issued with notice, it does not apply to temporary restraining orders issued with notice. As the court stated in Kable Printing Co.: “Even the most cursory reading of section 3 — 1 reveals that the 10-day limitation of a temporary restraining order relates only to those orders issued ex parte. The language of the statute is quite clear and explicit in this regard.” 63 Ill. 2d 514, 521, 349 N.E.2d 36, 39.

Furthermore, we see no compelling reason why a temporary restraining order issued with notice should be limited to only 10 days. The purpose of a restraining order is to maintain the status quo until both parties can appear before the court and present evidence on the preliminary injunction. (Paddington Corp. v. Foremost Sales Promotions, Inc. (1973), 13 Ill. App. 3d 170, 300 N.E.2d 484; Kirchenberg v. Chicago Transit Authority (1973), 13 Ill. App. 3d 184, 300 N.E.2d 482; 43 C.J.S. Injunctions sec. 10 (1978); 42 Am. Jur. 2d Injunctions sec. 14 (1969); 7 J. Moore, Federal Practice, par. 65.05 (2d ed. 1982).) To issue such an order for more than 10 days when only one party is before the court and has presented evidence is clearly unfair to the other party. (See Kable Printing Co. v. Mount Morris Bookbinders Union Local 65-B (1976), 63 Ill. 2d 514, 521, 349 N.E.2d 36, 39.) However, we believe it is not unfair to extend such an order for a limited time beyond 10 days at the discretion of the court when both parties are before the court and hearings have been scheduled to begin within a short period of time.

Therefore, we affirm the order of the circuit court of Cook County in denying the defendants’ motion to dissolve the temporary restraining order.

Affirmed.

ROMITI and LINN, JJ., concur.


author: JUSTICE ROMITI

text:
    LEONARD MASON, Petitioner-Appellant, v. EDWARD ROSEWELL, Cook County Treasurer, Respondent-Appellee.
    First District (4th Division)
    No. 81-2003
    Opinion filed July 15, 1982.
    Lupel and Amari, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Jayne Clark Casey and Carolyn Clift, Assistant State’s Attorneys, of counsel), for appellee.
   JUSTICE ROMITI

delivered the opinion of the court:

The primary issue in this case is whether a contract purchaser is an owner under section 247a of the Revenue Act of 1939. (Ill. Rev. Stat. 1979, ch. 120, par. 728a.) After the property in question was sold at a tax sale, plaintiff, Leonard Mason, failed to redeem within the stipulated time. Thereafter he filed an action against Rosewell as trustee of the Indemnity Fund (Fund) for indemnification under section 247a which provides for indemnification of any owner who without fault or negligence sustains loss or damage by reason of the issuance of a tax deed. The trial court held that a contract purchaser is not an owner and dismissed the complaint. We reverse, holding that a contract purchaser may be an owner. We further hold that the mere fact Mason alleged he hired another person, Bill Randle, to recover the property, that Randle did not do so and that as a direct and proximate result of Randle’s conduct a tax deed was'issued does not, as a matter of law, bar Mason’s recovery.

The procedural facts are somewhat unusual. Mason filed his complaint seeking indemnification on June 11,1980. The Fund thereafter filed both an answer and a third-party complaint against the allegedly erring agent, Randle. (However, Randle has never been successfully served despite several attempts.) Subsequently both Mason and the Fund filed motions for summary judgment with affidavits attached. Both motions were denied, the trial court correctly concluding there were questions of material fact. The Fund then filed a section 45 motion (Ill. Rev. Stat. 1979, ch. 110, par. 45) to dismiss. (Mason apparently waived any procedural irregularity.) The Fund alleged in its section 45 motion that: (1) Mason at best had only the rights of a contract purchaser and was not an owner under the statute; (2) the fault of the agent was imputable to Mason, his principal; Mason was liable for his agent’s mistakes and therefore could not allege or prove that he was without fault or negligence.

As already noted the trial court did not rule on the second issue but dismissed solely on the basis that a contract purchaser is not an owner.

I

A section 45 motion to dismiss merely addresses the issue whether the complaint, liberally construed, can be considered to state a cause of action. (Horwath v. Parker (1979), 72 Ill. App. 3d 128, 390 N.E.2d 72.) The court must consider solely the allegations set forth in the complaint; it cannot consider any affidavits, depositions or exhibits when considering a section 45 motion to dismiss a complaint for failure to state a cause of action. (Johnson v. Nationwide Business Forms, Inc. (1976), 41 Ill. App. 3d 128, 359 N.E.2d 171.) Likewise, well-pleaded facts are considered admitted as true. (Shugan v. Colonial View Manor (1982), 107 Ill. App. 3d 458, 437 N.E.2d 731.) The fact that in this case defendant filed an answer is irrelevant for purposes of the motion to dismiss.

In his complaint Mason alleged that prior to 1971 the record title holder of the property was Oak Park National Bank. The bank on May 19, 1971, entered into articles of agreement for deed with certain contract purchasers; this contract was recorded. The contract purchasers in turn on June 17, 1974, executed quitclaim deeds transferring their interest in the property to Mason. These deeds were also recorded. On January 26,1977, Thornton, Ltd., purchased the property at a tax deed sale. The period of redemption was to expire on January 26, 1979. Mason was notified of the sale but was unable to thoroughly understand the nature of the proceedings and the actions reasonably expected of him. Accordingly, Mason retained Randle to effect a redemption. He paid Randle $8,000 as and for the costs of redemption and any fees which might be due. He was further prepared to pay the 1977 and 1978 annual real estate taxes as necessary. Mason was at all times financially able to complete the necessary redemption. Randle entered into an agreement with Thornton to purchase the certificate of purchase for $6,000 and paid $4,800 as an earnest money deposit. However Randle, without the knowledge, negligence or fault of the petitioner, failed to complete the transaction. As a direct and proximate result of Randle’s conduct a tax deed was issued to Thornton on March 9,1979.

Section 247a of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 728a) reads in part as follows:

“(4) Any owner of real estate sold pursuant to any provision of this Act at a sale held subsequent to September 1, 1970, who without fault or negligence of his own sustains loss or damage by reason of the issuance of a tax deed pursuant to Sections 266 or 266a, and who is barred or in any way precluded from bringing an action for the recovery of such real estate ° ° has the right to indemnity for the loss or damage sustained. Indemnity shall be limited to the fair cash value of the real estate as of the date that the tax deed was issued, less any mortgages or liens thereon.
(5) Any person claiming indemnity hereunder shall petition the Court which ordered the tax deed to issue, shall name the County Treasurer, as Trustee of the indemnity fund created hereby, as defendant to the petition and shall pray that judgment be entered against the County Treasurer, as Trustee, in the amount of the indemnity sought. * * * The Court shall liberally construe this Section to provide compensation wherever in the discretion of the Court the equities warrant such action. The County Treasurer, as Trustee of such indemnity fund, shall be subrogated to all parties in whose favor judgment may be rendered against him, and by third party complaint may bring in as a defendant a person not a party to the action who is or may be liable to him, as subrogee, for all or part of the petitioner’s claim against him.”

The word “owner” is a broad, flexible word, applying not only to legal title holders but to others having control or enjoyment of the property. The Illinois Supreme Court recently stated in People v. Chicago Title 6- Trust Co. (1979), 75 Ill. 2d 479, 489, 389 N.E.2d 540, 544:

“The term ‘owner,’ as applied to land, has no fixed meaning applicable under all circumstances and as to any and every enactment. (See Keesling, Conflicting Conceptions of Ownership in Taxation, 44 Cal. L. Rev. 866 (1956).) It usually denotes a fee simple estate, but in Illinois it may include ‘one who has the usufruct, control or occupation of land with a claim of ownership,' whether his interest be an absolute fee or a less estate.’ (Coombs v. People (1902), 198 Ill. 586, 588.) Title to property does not necessarily involve ownership of the property. Title refers only to a legal relationship to the land, while ownership is comparable to control and denotes an interest in the real estate other than that of holding title thereto. Restatement (Second) of Trusts sec. 2, comment d, and sec. 10, comment a (1959).

The key elements of ownership are control and the right to enjoy the benefits of the property.”

And see People ex rel. Hart v. Village of Lombard (1925), 319 Ill. 56, 149 N.E. 584.

. Since a contract purchaser under a recorded contract or deed generally enjoys the control or occupation of the land with a claim of ownership, he may be an owner under Illinois law. As the Illinois Supreme Court stated in Chapman v. County of Will (1973), 55 Ill. 2d 524, 531-32, 304 N.E.2d 287, 291:

“In People ex rel. Hart v. Village of Lombard, 319 Ill. 56, 59, the court stated, ‘The word “owner” has been defined to include one who has the use, control or occupation of the land with claim of ownership, whether his interest be an absolute fee or a less estate.’ [Citation.] We are of the opinion that the statute itself must be examined to determine the meaning of the term ‘owners’ based upon the context in which it is used.
In Bredberg v. City of Wheaton, 24 Ill. 2d 612, the court concluded that a statute, comparable to section 5, was designed to afford a right of protest to qualified persons who would be most affected by a zoning change. Contract purchasers of land that is directly across a roadway, an alley or adjoins the property sought to be rezoned will ultimately be no less affected if they fulfill the terms of their contracts than those who may have a fee estate yet finance their purchase by a conventional mortgage. Moreover, cognizance has been given to the significant property interest which contract purchasers acquire. (Rosewood Corporation v. Fisher, 46 Ill. 2d 249, 257.) Therefore we hold that contract purchasers, who otherwise meet the qualifications set forth in section 5, may be considered ‘owners’ for the purpose of objection to an alteration of a zoning classification.”

And contract purchasers or vendees under contracts of sale have been recognized as owners in other States as well. See, for example, Roberts v. Osburn (1979), 3 Kan. App. 2d 90, 589 P.2d 985; Committee of Protesting Citizens v. Val Vue Sewer District (1976), 14 Wash. App. 838, 545 P.2d 42; MacPherson v. City of Asheville (1973), 283 N.C. 299, 196 S.E.2d 200; Scheer v. Weis (1961), 13 Wis. 2d 408, 108 N.W.2d 523; State ex rel. Rlee v. City of Rochester (1961), 260 Minn. 151, 109 N.W.2d 44.

The Fund contends that the term “owner” should be strictly construed here to retain the integrity of the collection of real estate taxes, since the indemnity provision does not encourage the payment of taxes, and that under such strict construction a contract purchaser would not be the owner. But this argument ignores both the express provision of the statute that it be liberally construed and the law of Illinois as established in People ex rel. Hart v. Village of Lombard (1925), 319 Ill. 56, 149 N.E. 584, and other cases cited therein, that where the term “owner” is used without restriction it includes one who has the use, control or occupation of land with claim of ownership, whether his interest be in absolute fee or a lesser estate. The term is used without restriction here. The legislature must be presumed to have known the law of Illinois when it enacted the statute. {Mier v. Staley (1975), 28 Ill. App. 3d 373, 329 N.E.2d 1, appeal denied (1975), 60 Ill. 2d 597; Nardi v. Segal (1967), 90 Ill. App. 2d 432, 234 N.E.2d 805.) Thus absent any limitation on the word “owner” and in light of the requirement in the statute that it be liberally construed, the word “owner” must be given the broad construction dictated by Lombard, Chapman and Chicago Title. It follows that a contract purchaser, or his assignee, who has control or occupation of the land, and the right to enjoy the benefits of the property with a claim of ownership, is an owner under section 247a of the Revenue Act of 1939.

• 2 Citing certain statements made in the affidavits, the Fund also contends on appeal that Mason was not a contract purchaser because the original contract purchaser did not obtain prior written direction from those empowered to direct the trustee. But as this court has already pointed out, the affidavits should not be considered by a court when ruling on a section 45 motion to dismiss. Accordingly, we do not rule on the question whether Mason would still be an owner if his interest was somewhat less thaii that of a contract purchaser. Nor do we determine whether in any event the trustee or the beneficial owners would be es-topped from relying on this fact by their acceptance of payments from Mason.

Finally, the Fund argues in its brief that the complaint must be dismissed because Mason has failed to prove ownership. As this court has repeatedly stated, a plaintiff is not required in his complaint to prove anything. (Shugan v. Colonial View Manor (1982), 107 Ill. App. 3d 458, 437 N.E.2d 731.) Mason has alleged facts sufficient to show, if proven, a claim of ownership qualifying for indemnification.

II

The Fund also contends the complaint reveals that as a matter of law Mason cannot recover because the loss, as Mason alleged, was due to Randle’s conduct. Below the Fund contended that “the petitioner engaged in conduct which materially contributed to the problem by retaining * * * Randle.” This, however, is not the test of the statute, since the act materially contributing to the problem must be with “fault or negligence.”

On appeal, the Fund contends that since Randle was Mason’s agent, any negligence of Randle must be imputed to Mason and therefore Mason cannot, as a matter of law, be “without fault or negligence” and the complaint must be dismissed even though Mason in his complaint alleged Randle’s acts were “without the knowledge, negligence, or fault of the petitioner.” It may be that at trial the Fund may be able to show that Randle was negligent, that his conduct was within the scope of his employment and imputable to Mason and that the conduct is sufficient to bar Mason’s recovery. But this is not a matter that can be determined on a motion to dismiss. Furthermore, in absence of any evidence as to the precise relationship between Randle and Mason, and the nature of Randle’s breach of duty to Mason, it would be premature to decide whether, even if Randle’s acts are imputable to Mason, he can be said to be “without fault or negligence.” To recover under the statute the petitioner need not be totally blameless but need only not have purposefully failed in a duty or engaged in conduct that materially contributed to the problem complained of, and each case must be decided on its own facts. Garcia v. Rosewell (1976), 43 Ill. App. 3d 512, 357 N.E.2d 559.

For the foregoing reasons the judgment of the circuit court is reversed and the cause remanded for further proceedings.

Reversed and remanded.

JIGANTI and LINN, JJ., concur.